Tips, Techniques, and Best Practices

Developed by John Settle, Certified Mentor Mediator
Supreme Court of Virginia, USA

This paper reflects the experiences shared by many mentor-mediators and those who have been mentees. The points are displayed in the sequence of before, during, and after a mediation session.

This paper assumes mentoring will accompany a co-mediation session in which the mentor and mentee co-mediate an actual dispute. However, the points are adaptable for use by a separate observer-evaluator or for mock mediations.

Before the mediation:

1 Set expectations about meeting before and after the mediation session and how to prepare (e.g., “let’s meet before the mediation at [ time ] on [ date ],” and “I expect you to stay after the session for at least 30 minutes to allow time
for debriefing”). Describe how you plan to use these meetings. Ask the mentee to review evaluation forms, if used in your program, before you meet.

2 Discuss what the mentee wants to achieve in the upcoming mediation and any concerns and anxieties they have. Try to focus the mentee on specifics – skills, mediator philosophies, stages, etc. This discussion typically will differ for a first-case mentee and for one who has had several cases.

3 Against the background of the mentee’s experience to date, any developmental needs noted by prior mentors, and the discussions above, plan with the mentee for your mutual expectations and your respective roles – e.g., how you two will share or otherwise handle the introduction to mediation, the extent to which you will share “air time” during the mediation, how to deal with breaks, and how to deal with particular skill development needs of the mentee.
Revisit and reinforce basic learning points as needed (e.g., for the introduction, the trust-building overlay, different ways of approaching “ground rules”). Remind the mentee about the importance of body language and of the importance of listening for the “message behind the words.” If appropriate, mention dress or context, such as court demeanor.

4 Discuss your respective personal styles or models of mediation with the mentee, and any particular practices you favor (or don’t) concerning, e.g., “ground rules” and caucusing. This provides a touchstone for post-mediation
debriefing on different approaches to issues that arose during the mediation, particularly where the mentee may have heard about different approaches from trainers or other mentors. Mentees often are trying to make sense of different perspectives from several sources. Consider the mentee’s special needs and attributes – e.g., English language skill, disabilities, pacing, and conflict management styles.

5 Assure that the mentee understands that the parties’ needs are paramount and take precedence over the mediation as an educational endeavor for the mentee — and that if you as mentor feel the need to step in, you will do so.

6 Discuss what you know about the upcoming case, and any particular emotional, process, power, or substantive matters that might arise and ways in which these matters might be approached.

7 If you are joined by an observer rather than a co-mediating mentee, clarify expectations about how the observer will be introduced to the parties, where the observer will sit, and the observer’s non-participatory role. Give the observer assignments for later discussion: watching body language, questions about your actions and reactions during the mediation.

8 Share your practices around a suggested “toolbox” – copies of forms, “introduction-to-mediation” outline, tissues, calendar, notepaper and pens, etc. Consider discussing your (and others’) practices concerning seating arrangements and use of easels and computer laptops for note-taking or display of information for parties.

9 When mentoring someone with subject expertise (attorney, financial advisor, counselor, etc.) discuss how to separate their use of that expertise and the temptations of their other roles from their role as a mediator. This also
presents the opportunity to discuss associated ethical issues.

10 If you anticipate multiple sessions or post-session contacts with parties (e.g., for reviewing documents), clarify with your mentee how to manage the parties’ expectations for communications and document flow.

11 “Expect the unexpected.” As appropriate, discuss how to respond to problems that occasionally arise, like the need for an interpreter, unexpected parties, etc.

During the mediation:

1 Follow your plan. Send a message of support (and responsibility) to the mentee by doing the things (and letting the mentee do the things) you discussed before the mediation.

2 Consider whether to identify your co-mediator as a mentee. There are two perspectives on this. On the one hand, identification can have the effect of diminishing your mentee’s perceived role so substantially that it becomes virtually useless as a co-mediation learning experience. On the other hand, you may feel that the parties have the right to know about the competency and experience of the persons who are their mediators. This may be a case-by-case determination.

3 Be continuously alert, but give the mentee room to work and make some (harmless) errors. As stated above, your primary responsibility is to the parties, but you should be prepared to tolerate some less-than-artful actions of the
mentee. There are few errors from which one cannot recover. Of course, you should note opportunities for improvement for later debriefing. Furthermore, you as a mentor need to strive for self-awareness about what may be your own biases. Mentors may be “turned off” by a mentee’s choice of phrase or style, but we should reflect on what needs “correction” vis-à-vis what needs tolerance.

4 Although you want to give the mentee room to learn from their own experiences, your modeling of adroit mediation practices is a very effective learning tool as well. For example, you can demonstrate useful phrases used to clarify, an example of your style of reframing, etc., and affirm these later in debriefing.

5 If you must step in, try to do so unobtrusively if possible – e.g., if you believe you really need to redirect a line of discussion from something the mentee just asked, you might say “just before we get to that, could we first clear
up something that I still am a little unclear about . . . .” It is best that the parties not unnecessarily pick up “vibes” that something has gone wrong, as it can negatively affect their trust in the whole mediation — and you want to avoid
appearing to disrespect your co-mediator.

6 Once in a while, things may go so badly that you need to change directions substantially and immediately. Take a break (you do not necessarily have to disclose your real reason for the break to the parties). Then meet with
your mentee, debrief specifically around why you took the action, and plan for recovery back at the table.

7 Ordinary breaks during the mediation may present “mini-debriefing” opportunities about prior activity R